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State v. United States Fish and Wildlife Service

United States District Court, D. Colorado

September 27, 2018

THE STATE OF COLORADO by and through the Colorado Department of Natural Resource, the Division of Parks and Wildlife, and the Parks and Wildlife Commission, Plaintiff,
UNITED STATES FISH AND WILDLIFE SERVICE, JAMES KURTH, in his official capacity as acting Director of the United States Fish and Wildlife Service, and RYAN ZINKE, in his official capacity as Secretary of the United States Department of the Interior, Defendants, BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF GUNNISON, COLORADO, and GUNNISION COUNTY STOCKGROWERS' ASSOCIATION, INC., Plaintiff-Intervenors, and THE STATE OF UTAH, and SAN JUAN COUNTY, UTAH, Plaintiff-Intervenors, WILDEARTH GUARDIANS, and DR. CLAIT E. BRAUN, Defendant-Intervenors, and CENTER FOR BIOLOGICAL DIVERSITY, and WESTERN WATERSHEDS PROJECT, Defendant-Intervenors.



         The protagonist in this case is the Gunnison sage-grouse, a native North American bird, known for its elaborate mating rituals and expansive use of sagebrush country. At issue is the degree of protection required to ensure the species' long-term conservation-a topic on which the Parties vehemently disagree and from which this federal action stems. This appeal follows the November 14, 2014 issuance by the United States Fish and Wildlife Service (the “Service”)[1] of Final Rules adding the Gunnison sage-grouse to the List of Endangered and Threatened Wildlife (“Final Rule”).[2] (AR at 199346-199518.)[3] Specifically, the Service listed the Gunnison sage-grouse species as “threatened” under the Endangered Species Act, 16 U.S.C. §§ 1531- 1541, and designated 1.4 million acres in Colorado and Utah as “critical habitat” for the bird. (Id.) Numerous entities now challenge that Final Rule. Among them are the State of Colorado; the Board of County Commissioners for the County of Gunnison, Colorado and the Gunnison County Stockgrowers' Association, Inc.; and the State of Utah and San Juan County, Utah (Plaintiffs collectively).[4] (Doc. ## 143, 147, 148.)[5] Plaintiffs contend that the Service erred in numerous ways-procedurally and substantively-and request that this Court vacate the Final Rule.[6] Having thoroughly considered Plaintiffs' arguments; Federal Defendants' and Defendant-Intervenors' responses; the entire Administrative Record; and the applicable law, the Court affirms the Service's determinations and denies Plaintiffs' request to vacate the Final Listing Rule.

         I. BACKGROUND

         Gunnison sage-grouse are ground-dwelling birds considered obligate users of a sagebrush landscape and thereby historically located in southwestern Colorado, southeastern Utah, northwestern New Mexico, and northeastern Arizona. (AR at 199412.) At the time of the Final Rule, the range of the Gunnison sage-grouse included only southwestern Colorado and southeastern Utah (Doc. ## 156 at 8; 143 at 13-14) and the rangewide population of the species was estimated at 4, 705 birds (AR at 199404-408) grouped into seven populations. Gunnison Basin (Unit 6)[7] population contains most of the species, nearly 4, 000 birds. The remaining birds are isolated in six smaller “satellite” populations (ranging from 10 to 206 birds) identified as Monticello-Dove Creek (Unit 1), Piñon Mesa (Unit 2), San Miguel Basin (Unit 3), Cerro Summit-Cimarron-Simms Mesa (Unit 4), Crawford (Unit 5), and Poncha Pass. (AR at 199401- 406.) All populations are located in Colorado, with the exception of Units 1 and 2, which extend into Utah.

         In January 2013, the Service published a rule (“Proposed Rule”) proposing to list the Gunnison sage-grouse as “endangered” throughout its range and designating 1, 704, 227 acres as critical habitat. (AR at 69984-70037.) Over the course of the next year, the Service opened four public comment periods, held three public hearings, and elicited evaluation by five peer reviewers. (Doc. # 1156 at 9; AR at 199400-401.) After reviewing the comments and evaluations, the Service modified the listing to “threatened” and limited the critical habitat to 1, 429, 551 acres. (AR at 199346-98; 199399-518.)

         In the instant litigation, Plaintiffs challenge the rule-making procedures utilized by the Service, arguing primarily that the Service failed to disclose a critical scientific study upon which it relied. Plaintiffs also challenge the merits of the threatened listing and habitat designation, contending that the best available science does not support them. The Court addresses each of these contentions below. But before doing so, the Court highlights the laws governing the Service's actions and this Court's review of the Final Rule.



         The Endangered Species Act (“ESA”) was passed in 1973 to preserve ecosystems upon which threatened and endangered species depend and “to halt and reverse the trend toward species extinction.” Tennessee Valley Auth. v. Hill, 437 U.S. 153, 184 (1978); 16 U.S.C. § 1531(b). The ESA's “core purpose” is to prevent the extinction of a species by preserving and protecting the habitat upon which it depends from the intrusive activities of humans. Tennessee Valley Auth., 437 U.S. at 184. The Service is one of the two agencies tasked with implementing the ESA. The ESA obligates the Service to list any species that qualifies as an “endangered” or “threatened” species and to designate areas considered to be the species' critical habitat. 16 U.S.C. § 1533(a)(1), (3). Enumerated statutory criteria govern these determinations, which must be made according to the “best scientific and commercial data available.” Id. at § 1533(b)(1)(A).


         The National Environmental Policy Act (“NEPA”) is the centerpiece of environmental regulation in the United States. It complements the ESA, Middle Rio Grande Conservancy Dist. v. Norton, 294 F.3d 1220, 1230 (10th Cir. 2002), and requires federal agencies to pause before committing to a project and consider the likely environmental impacts of and reasonable alternatives to a preferred course of action. See 42 U.S.C. § 4331(b) (congressional declaration of national environmental policy); U.S. Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 756-57 (2004); Forest Guardians v. U.S. Forest Serv., 495 F.3d 1162, 1172 (10th Cir. 2007). Agencies must take a “hard look” at environmental consequences and satisfy various procedural and substantive requirements before acting. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350-51 (1989). By focusing both agency and public attention on the environmental effects of proposed actions, NEPA facilitates informed decision-making by agencies and allows the political process to check those decisions. Marsh v. Or. Natural Res. Council, 490 U.S. 360, 371 (1989); Balt. Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 97 (1983).


         The Administrative Procedures Act (“APA”) sets forth the required procedures that the Service must follow before listing a species under the ESA. Section 553 requires that an agency give notice of a proposed listing under the ESA. The notice must set forth “either the terms or substance of the proposed rule or a description of the subjects and issues involved, ” 5 U.S.C. § 553(b), and “give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments, ” id. at § 553(c).

         The APA also gives this Court jurisdiction to review the Service's determinations. Biodiversity Legal Found. v. Babbitt, 146 F.3d 1249 (10th Cir.1998). The Court determines whether the agency “examined the relevant data and articulated a rational connection between the facts found and the decision made.” Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1576 (10th Cir. 1994) (citing Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins., 463 U.S. 29, 43 (1983)).

         The Court will set aside an ESA determination only if the Court finds it to be arbitrary, capricious, an abuse of discretion, without observance of procedure required by law, or otherwise not in accordance with law pursuant to 5 U.S.C. § 706(2)(A). Citizens' Comm. to Save Our Canyons v. U.S. Forest Serv., 297 F.3d 1012, 1023 (10th Cir. 2002).

         While the standard of review is deferential to agencies, it does not “shield [agency actions] from a thorough, probing, in-depth review.” Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402, 415 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). Agency actions can be set aside as arbitrary and capricious for several reasons: the agency relied on factors Congress did not intend for it to consider; the agency completely failed to consider pertinent aspects of the problem; or the agency's explanation for its action is counter to the evidence before it or is so implausible that it can be neither a difference of opinion nor a product of agency expertise. State Farm, 463 U.S. at 43.

         However, “[t]he ultimate standard of review is a narrow one. The Court is not empowered to substitute its judgment for that of the agency.” Volpe, 401 U.S. at 416. The Court, moreover, grants controlling weight to the agency's application and interpretation of its own regulations, unless plainly erroneous. Thomas Jefferson v. Shalala, 512 U.S. 504, 512 (1994). So long as the agency articulated a rational basis for its interpretation and application, and considered all the relevant factors, the Court will uphold the agency's action. Copart, Inc. v. Admin. Review Bd., U.S. Dep't of Labor, 495 F.3d 1197, 1202 (10th Cir. 2007).

         III. STANDING

         Before turning to the merits of Plaintiffs' challenges, the Court must address a preliminary issue: Plaintiffs' standing to pursue this case. Defendant-Intervenors argue that the Plaintiffs lack Article III standing because they allege only “vague” and hypothetical claims of injury. They also argue that Plaintiffs lack prudential standing under NEPA because their requests would undermine NEPA's purpose of protection, not promote it. For the following reasons, the Court disagrees that Plaintiffs lack standing to pursue their claims in this case.

         A. LAW

         Under Article III of the Constitution, which limits federal courts to deciding “cases” or “controversies, ” a party must suffer an “injury in fact” from a governmental action.

The party invoking federal jurisdiction bears the burden of establishing an actual or imminent injury that is concrete and particularized rather than conjectural or hypothetical; a causal connection that is “fairly traceable” to the conduct complained of; and a likelihood of redressability in the event of a favorable decision.

Catron Cty. Bd. of Comm'rs v. U.S. Fish and Wildlife Serv., 75 F.3d 1429, 1433 (10th Cir. 1996), citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992). The party invoking federal jurisdiction bears the burden of establishing these elements. See FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990). When a plaintiff is itself an object of the federal action being challenged, “there is ordinarily little question that the action or inaction has caused him injury.” Lujan, 504 U.S. at 561-62. Counties and states, like Plaintiffs, are often deemed the object of federal action or inaction under the ESA, NEPA, and APA. E.g., Catron Cty. Bd. of Comm'rs., 75 F.3d at 1433 (county).

         When the plaintiff is an association, the same three elements apply. Warth v. Seldin, 422 U.S. 490, 511 (1975). An association has standing to sue even if it has not been injured itself, so long as the association's members satisfy the constitutional minimum of Article III. An association has standing to bring suit on behalf of its members when:

(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977), (quoted by Committee to Save Rio Hondo v. Lucero, 102 F.3d 445, 447 n.3 (10th Cir.1996)).

         Because NEPA does not contain a private right of action for those seeking to enforce its procedural requirements and a plaintiff must rely on the APA to bring such an action, a plaintiff must establish prudential standing in addition to Article III standing by showing that it has “suffer[ed] legal wrong” or that it is “adversely affected or aggrieved . . . within the meaning of a relevant statute” by some final agency action. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 883 (1990). To establish such an adverse effect under NEPA, Plaintiffs must establish they have suffered an injury in fact that falls within NEPA's “zone of interests.” United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 686 (1973).

         B. ANALYSIS

         The Court finds that Plaintiffs have met their burden to establish Article III and prudential standing under NEPA.

         Beginning with Article III standing, Plaintiffs have sufficiently alleged a concrete and particularized injury in fact “fairly traceable” to the Final Rule that would likely be redressed by a favorable decision. Each state and county Plaintiff (Colorado, Utah, San Juan County, and Gunnison County) alleged specific facts highlighting impediments to their sovereign and proprietary interests attributable to the Final Rule. See Illinois Dep't of Transp. v. Hinson, 122 F.3d 370, 372 (7th Cir. 1997); see also Maine v. Taylor, 477 U.S. 131, 137 (1986) (“a State clearly has a legitimate interest in the continued enforceability of its own statutes”); Massachusetts v. E.P.A., 549 U.S. 497, 518-19 (2007) (noting it is “of considerable relevance [when] the party seeking review is a sovereign State and not … a private individual.”); see also Otter v. Salazar, 2012 WL 3257843 at *11 (D. Idaho, 2012) (finding state had standing to challenge listing in part because of special status of states in the standing context). Plaintiffs have alleged an increased risk of economic, environmental, and regulatory injury to government-owned property and other proprietary interests, such as local governments' ability to manage and control land use, enforce health regulations, and protect natural resources. Each Plaintiff set forth consequences of restricted land use imposed by the Final Rule as well as the curtailment of county and state planning efforts, conservation programs, and general governance. Plaintiffs have, therefore, sufficiently demonstrated standing.

         Plaintiff Gunnison County Stockgrowers' Association (the “Association”) (the only non-government Plaintiff) also has Article III standing in this case. The Association is comprised of “over 100 members of the local ranching community and is the primary land-use organizational interest in the Gunnison Basin.” (Doc. ## 161 at 16; 23-1; 23-3; 23-4; 23-6.) The objectives and purpose of the Association include the protection of range privileges and other interests of the stock-raising industry. Members of the Association hold federal grazing leases on lands designated as critical habitat under the Final Rule. (AR at 20357-58.) The Final Rule imposes new procedural and substantive requirements on the maintenance and renewal of those leases and, more importantly, the Association's members' land use and participation in certain conservation programs. 16 U.S.C. § 1536(a)(2). The Service's own assessment revealed an economic impact of $16, 000 to grazing interests. (AR at 198278.) Members are also subject to civil and criminal penalties for disregarding new restrictions. Based on these and other allegations, the Association's claimed harm, flowing from the Final Rule, is sufficient to support Article III standing in this case.

         With respect to prudential standing, the Court also finds that Plaintiffs have met their burden to show that their injuries fall within the “zone of interests” protected by NEPA. The Defendant-Intervenors' only argument against prudential standing is that, because Plaintiffs request that the Listing Rule be vacated, i.e. eliminating its environmental protections, they cannot, as a matter of law, be furthering NEPA's protections. This argument is misplaced, and the Supreme Court has squarely rejected it. In Bennett v. Spear, 520 U.S. 154, 166 (1997), the Court found “no textual basis for saying that [NEPA's] expans[ive] standing requirements appl[y] to environmentalists alone.” The Court instead concluded that standing exists for plaintiffs “seeking to prevent application of environmental restrictions” in addition to plaintiffs seeking “to implement them.” Id. (extending prudential standing “not only to actions against the Secretary asserting underenforcement under § 1533, but also to actions against the Secretary asserting overenforcement under § 1533.”). Because plaintiffs who are opposed to, and injured by, environmental regulation are permitted to challenge it under well-established precedent, the Court finds that Plaintiffs have standing under NEPA.

         Ultimately, under the ESA, Congress has conferred the “widest possible standing” and authorizes suits with a “remarkable breadth.” Bennett, 520 U.S. at 164; Sw. Ctr. for Biological Diversity v. Clark, 90 F.Supp.2d 1300, 1307 (D.N.M. 1999). Plaintiffs in this case clearly fall within that wide scope, and Defendant-Intervenors' arguments are accordingly without merit.

         Having determined that Plaintiffs' standing is not an issue in this proceeding, the Court moves to discuss the merits of Plaintiffs' challenges to the Final Rule. The Court begins by addressing Plaintiffs' concerns with the Service's rule-making procedures, thereafter moving to the substantive, science-based challenges to the listing decision and habitat designation.


         Plaintiffs argue that the Service violated the procedural requirements of the APA by failing to provide notice of, and opportunity for public comment on, a Population Viability Analysis (“PVA”)[8] conducted by Amy Davis in 2012 (the “Davis 2012 Study” or “Study”). Plaintiffs argue that this failure constitutes reversible error. The Court disagrees.


         Among the information that must be revealed for public evaluation are the “technical studies and data” upon which the agency relies. See Solite Corp. v. E.P.A., 952 F.2d 473, 484 (D.C. Cir. 1991). If, during the rule-making process, the Agency encounters supplemental data or studies, a new notice and comment period is not always required; “consistent with the APA, an agency may use ‘supplementary' data, unavailable during the notice and comment period, that ‘expands on and confirms' information contained in the proposed rulemaking and addresses ‘alleged deficiencies' in the pre-existing data, so long as no prejudice is shown.” Solite, 952 F.2d at 484. Such “supplementary” information is distinct from “provid[ing] entirely new information critical to the [agency]'s determination.” Chamber of Commerce of U.S. v. S.E.C., 443 F.3d 890, 900 (D.C. Cir. 2006) (citations omitted).

         Several cases are illustrative. In Solite, 952 F.2d at 484, the Environmental Protection Agency (EPA) replaced one report with a later report as the source of data forming the basis for final quantitative measurements in a protective ESA listing. 952 F.2d at 484. The D.C. Circuit held that the EPA had not violated notice and comment provisions because the new data enabled the EPA to respond to concerns and confirm prior calculations. Further, the methodology used to analyze the data remained constant. Id. at 485; see also Cmty. Nutrition Inst. v. Block, 749 F.2d 50, 57-58 (D.C. Cir. 1984) (no violation of notice and comment requirements when unavailable supplemental studies were a response to comments which discussed a methodological flaw in prior studies); In re FCC 11-161, 753 F.3d 1015, 1140 (10th Cir. 2014) (no violation for addition of over 110 undisclosed documents).

         In contrast, in Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392, 1402-04 (9th Cir. 1995), the Ninth Circuit reversed a final listing where an undisclosed study “did not merely supplement or confirm existing data” but provided “unique information that was not duplicated in other reports” and upon which the Service relied in its ultimate listing determination. The Ninth Circuit found that the new study provided the “key analysis” to support the final listing and the opportunity for public comment was particularly crucial because “the accuracy of [the] material . . . [wa]s in question.” Id. at 1403.

         Ultimately, the cases make clear that, when the agency relies on supplementary evidence without a showing of prejudice by an interested party, the procedural requirements of the APA are satisfied without further opportunity for comment, provided that the agency's response constitutes a “logical outgrowth” of the rule initially proposed. See Solite, 952 F.2d at 484; Envtl. Integrity Project v. E.P.A., 425 F.3d 992, 996 (D.C. Cir. 2005).


         In the Proposed Rule, the Service placed weight on a 2005 PVA conducted by Dr. Phil Miller when analyzing one of the enumerated listing criteria. (AR at 70029-31.) The purpose of that PVA was to assist “in evaluating the relative risk of extinction for each [sage-grouse] population under the conditions at that time.” (AR at 70030.) The 2005 PVA predicted the relative probability of extinction under various management scenarios by looking at, among other things, sage-grouse life history, population dynamics, demographic parameters, deterministic forces, reproductive habits, genetics, and more. (AR at 11261, 70030.) The 2005 PVA did not consider several external threats acting on the species, such as habitat loss or fragmentation, and the Service so noted. (Id. at 70030.) Based this 2005 PVA, coupled with various other sources, the Service determined, as relevant here, that although “the Gunnison Basin sage-grouse is likely to persist long term in the absence of threats acting on it, ” the other six sage-grouse populations “are at a high risk of extirpation due to small population size” which impacts the entire species' “ability to persist.” (Id. at 11261.)

         In the Final Rule, the Service turned to the Davis 2012 Study which the Service concedes it did not disclose or reopen for comment. Like the 2005 PVA, the Davis 2012 Study sought to assess the survival and viability rates of the Gunnison sage-grouse. (AR at 69393-95.) Dr. Davis looked at many of the same factors as Dr. Miller, including population dynamics, demographic parameters, and reproductive rates. However, she focused on the Gunnison Basin population rather than the species at large. (AR at 199502.) She also included in her analysis additional years, considered external threats, and assessed more factors affecting the growth or decline of the species, such as juvenile recruitment and bird translocation efforts. (AR at 41440-43.) The Davis 2012 Study ultimately demonstrated to the Service, in pertinent part, that the Gunnison Basin population was not as stable as previously thought-adding to the conclusion that the entire species is in decline.

         C. ANALYSIS

         The Court finds no procedural violation for several reasons: (1) the Davis 2012 Study's findings permissibly supplemented previously existing data, i.e. logically outgrew from it; (2) the Study was not the critical basis on which the Service relied to reach its ultimate listing determination, and (3) Plaintiffs were not prejudiced from nondisclosure.

         First, the Davis 2012 Study supplemented the data obtained in the 2005 PVA. It had the same general purpose and assessed many similar extinction factors. It also filled in gaps noted by the Service, such as external threats on the species. Plaintiffs nonetheless harp on one main difference between the two studies: that Dr. Miller found the Gunnison Basin population to have a less than a 1% extinction rate over the next 50 years while Dr. Davis found the Gunnison Basis population's mean extinction time to be 58 years. But a mere difference in conclusion does not necessarily mean that the later study could not have supplemented findings in the former one. And, those differing conclusions did not significantly alter the Service's ultimate finding about the Gunnison sage-grouse's overall declining viability, which remained unchanged from the Proposed Rule to the Final Rule. The Service determined both times that the “overall declining trends in the . . . satellite populations” create concern that the species is not stable rangewide. (AR at 70030, 199502.) Thus, the Court finds that Davis 2012 Study expanded, supplemented, and logically grew from the findings in the Proposed Rule, rendering the failure of the Service to disclose it not erroneous.

         Second, the Plaintiffs' overstate the critical nature of the Davis 2012 Study to the Final Rule. Although the Service often deemed it “the most current and best available scientific information regarding the viability of Gunnison sage-grouse, ” the Service also limited its primary discussion of the Study to Factor E (only one factor in the five-factor analysis), acknowledged various weaknesses and uncertainties in the Study, and expressly stated that it was “also utilizing the [2005] PVA in our consideration of the foreseeable future.” (AR at 199502-504, 199511.) Moreover Plaintiffs' “reliance” argument does not make logical sense. The Proposed Rule, which they contend relied on the 2005 PVA Study finding the Gunnison Basin population stable, proposed an endangered listing for the species; the Final Rule, which they contend relied on the Davis 2012 Study finding the Gunnison Basin population in slight decline, reduced the listing to threatened. It makes no logical sense to conclude that a study finding an increased extinction probability caused the Service to lessen the severity of the listing. The Davis 2012 Study was not as critical to the Final Rule as Plaintiffs contend.

         Third, and most importantly, even if the Service somehow erred in failing to reopen the comment period to provide notice of the Davis 2012 Study, Plaintiffs fail to demonstrate how this error prejudiced them. To begin, Plaintiffs had access to the study during the notice and comment period. See Bear Valley Mut. Water Co. v. Jewell, 790 F.3d 977, 993 (9th Cir. 2015) (noting that appellants were aware of, and therefore able to comment on, the challenged study during notice and comment period). Indeed, the record reflects that Colorado alerted the Service to the Study in December 2012 (AR at 5855) and several of the Plaintiffs commented on the study to the Service during the notice and comment period. For example, in its second sets of comments to the Service, Gunnison County referenced the Davis 2012 Study numerous times, urged the Service to depend on its findings, and criticized the Service for not considering the Davis 2012 Study in the Proposed Rule. (AR at 91282-413). Gunnison County touted Dr. Davis's research as the “most current and longest demographic data collected for the [Gunnison sage grouse], ” the “best scientific information available, ” and “better” than other PVAs presented to the Service. (AR at 91282, 912315-18, 91379-80, 91386.) The Gunnison County Stockgrowers' Association also urged the Service to consider the Davis 2012 Study, as did Colorado, highlighting errors in the previously considered PVAs as corrected in the Davis 2012 Study. (AR at 73479, 232246.) Plaintiffs can hardly argue that they had no notice of the Study and no opportunity to comment on its findings.

         Moreover, Plaintiffs' arguments with respect to the reliability and accuracy of the Study were expressly considered by the Service before the Final Rule was issued. Plaintiffs' primary challenge to Dr. Davis's data is that she improperly included several years of population decline for the Gunnison Basin sage-grouse and that, had she added in a year of population growth or conducted the study at a different time, her results would have showed a trend toward an increasing population rather than a declining one.[9] (Doc. # 33-34.) Plaintiff Colorado presented this same argument to the Service during the comment period, stating “it is fundamentally important to note that the [Davis 2012] data used were from a short time period when [Gunnison sage-grouse] numbers were declining slightly after reaching record numbers in the Gunnison Basin.”[10] (AR at 232246.) The Service expressly acknowledged this problem with the research in the Final Rule, recognizing issues with the Davis 2012 Study because it was based on a “time when the population was experiencing slight decline” and adding that “had [the Study] been conducted a few years earlier or a few years later, a different trend across time could have resulted.” (AR at 199500-502.) Moreover, the data Plaintiffs presently present to challenge the viability of the Study is the same data contained in the Davis 2012 Study itself and, therefore, was clearly before the Service at the time of the listing decision. Because Plaintiffs present no new information or challenges to the Davis 2012 Study that were not already presented to and considered by the Service, Plaintiffs fail to demonstrate how another opportunity to comment on the Study would change or affect the outcome of the listing decision. The Court, therefore, finds no prejudice has occurred.

         Finding no procedural errors, the Court turns to Plaintiffs' substantive challenges to the merits of the Final Rule, beginning with their challenges to the “threatened” listing determination.


         Plaintiffs challenge the merits of the “threatened” listing on several grounds. They argue that many of the Service's claimed threats to the species are unsupported by science, particularly with respect to the large, stable Gunnison Basin population, which Plaintiffs claim could alone secure the entire Gunnison sage-grouse species. Plaintiffs also object to the Service's conclusion that ongoing and future local conservation efforts were insufficient to prevent listing the bird as threatened. Plaintiffs add that the Service's findings are “speculative, ” “overstat[ed], ” and unreasonable and that the Service's conclusion that the Gunnison sage-grouse is “threatened” is consequently erroneous. To succeed, Plaintiffs must demonstrate that the Service's determinations were arbitrary and capricious, lacking in reason and scientific support. Plaintiffs have not so demonstrated.

         A. LAW

         The Service utilizes enumerated statutory criteria to determine whether to list a species as “threatened” or “endangered” and, thus, in need of protection. 16 U.S.C. § 1533. A species is “endangered” if it is “in danger of extinction throughout all or a significant portion of its range.” Id. at §§ 1532(6), (20). A species is “threatened” if it is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Id. A species may be deemed endangered or threatened because of any one of the following five factors, or a combination thereof:

(A) the present or threatened destruction, modification, or curtailment of its habitat or range;
(B) overutilization for commercial, recreational, scientific, or educational purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory mechanisms; or
(E) other natural or manmade factors affecting its continued existence.

16 U.S.C. § 1533(a)(1). Ultimately, the Service must determine which species are threatened or endangered “solely on the basis of the best scientific and commercial data available to [it].” Id. at § 1533(b)(1)(A). The Service must also consider “those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species.” Id. In 2003, this latter requirement- that the Service consider all conservation efforts-was supplemented by the Policy for Evaluation of Conservation Efforts When Making Listing Decisions (“PECE”). See PECE, 68 Fed. Reg. 15100 (Mar. 28, 2003). The PECE identifies criteria that the Service uses for assessing prospective or nascent conservation efforts that have either not yet been implemented or have not yet proven effective. Id.

         B. ANALYSIS

         Having thoroughly reviewed the issue, the Court finds that the Service's decision to list the Gunnison sage-grouse as threatened was not arbitrary and capricious. To the contrary, substantial evidence supports that the near-extinction of the six satellite populations, coupled with the declining Gunnison Basin population, causes the entire species to face extinction “in the foreseeable future.”

         1. Threats Facing the Gunnison Sage-grouse

         The primary threats challenged by Plaintiffs-each of which corresponds to one of the five statutory criteria-are increasing habitat decline and climate change (Factor A), drought (Factor E), West Nile virus (Factor C), and declining genetic health and small population size (Factor E).[11] (AR at 199435-513.) ...

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